FERNANDO AJ.—Ramen CHettiar v. Pvnchiappuhamy.
Present: Moseley J- and Fernando A. J.
RAMEN CHETTIAR t>. PUNCHIAPPUHAMY.
259—D. C. Kandy, 44J32.
Malicious prosecution—Burden of proof—Plaintiff not bound to prove hisinnocence—Roman-Dutch law.
In an action for malicious prosecution the plaintiff is not' bound toprove his innocence or the falsity of the charge apart from proving thetermination of criminal proceedings in his favour.
Moss v. Wilson (8 N. L. R. 366) ; Corea v. Petris (9 N- L. R. 276)referred to.°
A PPEAL from a judgment of the District Judge of Kandy.
V. Per.era, K.C. (with him Molligoda), for defendant, appellant.
N. E. Weerasooria (with him Ranawake, Cyril Perera and Wikrama-nayake), for plaintiff, respondent.
November 25, 1937. Fernando A.J.—
This was an action for malicious prosecution, and the learned DistrictJudge was of opinion that in order to succeed in such an action, theplaintiff had to prove—(1) that he was prosecuted, (2) that he wasacquitted, (3) that the defendant was actuated by malice expjress orimplied, and (4) that the defendant had no reasonable'and probable causefor prosecuting the plaintiff. It was common ground that the plaintiffwas prosecuted, and the prosecution against the plaintiff was withdrawn_ by Proctor for the defendant. On the question of malice, the learnedDistrict Judge held that there was implied malice, and that express malicecould also be inferred against the defendant. On the question of reason-able and probable cause, the learned Judge held that the defendant hadno justification in making the charge or persisting in it. He accordinglyentered judgment for the plaintiff in a sum of Rs. 500 and costs.
On the evidence, the learned Judge held that a number of persons,entered upon a land which was in the possession of the defendant, thatthey ejected the defendant’s agent, and his labourers, and that theyplucked tea from the land. He also held that there was no evidenceon which the defendant who was not present at the time could haveentertained any. reasonable belief that the plaintiff took part in theactivities of the crowd.
Counsel for the appellant at the beginning of the argument stated thatthe main defen.ce of the defendant was that he had accepted a statementmade to. him by Palaniandy and that in prosecuting the plaintiff, he actedin good faith, on that statement. As the learned District Judge pointsput, the defendant in his evidence before the-Police Magistrate, did notstate that he was acting on a statement made by Palaniandy. Palani-andy in his evidence did not state that the plaintiff formed one of themembers of the unlawful assembly which had driven out his coolies. Itwas suggested that his evidence in the District Court had been colouredby the fact that there had been litigation between himself and the
FERNANDO AJ.—Ramen Chettiar v. Punchiappuhamy.
defendant, but no such suggestion can be made with regard to the state-ment P 5 which was recorded at the Police Station. It appears from F 5that Palaniandy came to the Police Station with the defendant and allhe could say was that he saw about 15 persons come to the land andpluck tea. He mentions a conversation with Y. L. Appuhamy who hadsent the people, but says nothing at all about the plaintiff. In fact theonly name mentioned by him is that of Y. L. Appuhamy. In the PoliceCourt, however, the defendant charged seven persons by name the secondof them being this plaintiff, and the evidence given by the defendant wasdirect evidence against the plaintiff. It is impossible to believe thatPalaniandy a't the Police Station would not have given details as to thepersons and events to which he could testify, and it seems clear that thedefendant in charging these seven persons could-not have been relyingentirely on the statement made to him by Palaniandy.
In an action for malicious prosecution the plaintiff must prove that acharge was made to a Judicial Officer, that the charge was false—itsfalsity being demonstrated, where prosecution has followed, by theplaintiff’s acquittal—that the charge was made without reasonable causeand that the defendant ^himself did not honestly believe it to be true,(see Wood Renton J. in Moss v. Wilson,’) and it is clear that he has statedthe essential elements of an action for malicious prosecution from a numberof English authorities that he cites, as well as from two local cases.
In the case of Corea v. Petris’, Lascelles A.C.J., following the judgmentin Abrath v. North Eastern Railway Company *, states that it is incumbentupon the plaintiff to prove (1) that he was innocent, and that his innocencewas pronounced by the tribunal before which the prosecution was made,
that there was a want of reasonable and probable cause for the prose-cution, (3) that the proceedings were initiated in a malicious spirit. Tomy mind there is no essential difference between these two decisions.They both set out that one of the essential elements in an action formalicious prosecution is the termination of the criminal prosecution infavour of the plaintiff, and as Wood Renton J. said, the plaintiff mustprove that the charge was false, and the manner in which he can so proveits falsity is by proving that the prosecution was followed by the plaintiff’sacquittal. When the case of Corea v. Peiris came before their Lordshipsof the Privy Council, Lord Atkinson accepted the conclusion arrived atby the Supreme Court that the principles of the Roman-Dutch law on thesubjects of the essentials for an action for malicious prosecution arepractically identical with the principles of the English law, and we havenot been referred to any decision in England or here which sets out thatthe plaintiff’s action must -fail if he cannot prove at the trial of the. actionfor malicious prosecution that he was innocent in fact, in addition toproving that the proceedings terminated in his favour.
Counsel for the appellant next contended that the position under theRoman-Dutch law in this respect was different to the position under theEnglish law. It is stated at page 81 of the Fourth Volume of the Insti-tutes of Cape Law, that the Courts laid down certain essential requisitesfor the action for malicious prosecution and that the plaintiff must allege1 8 N. L. R. 368.-1 9 N. L. R. 376.
(1863) 11 Q. B. D. 79.
120FERNANDO A.J.—Ratnen Chettiar v. Punchiappuhamy.
in his declaration and must be prepared to prove, inter alia, that thecriminal charge laid against him by the defendant was false in fact, andhas been decided to be so, by a competent Court or by the Public Prose-"cutor. He refers to the case of Lenue against Zwartboi, 13 S. C 403, but itwould appear from a long passage from the judgment in that case quotedin Nathan, vol. Ill, ip. 1690, that that judgment decided that if the PublicProsecutor refuses to prosecute, there is a sufficient termination of theproceedings to enable the plaintiff to proceed for malicious prosecution.It is also clear from the following passage of Maasdorp that the plaintiffneed not except by proving the termination of the proceedings furtherprove his innocence or the falsity of the charge, for Maasdorp proceedsat page 81 in these words, “ the first thing then to be proved is that thecriminal proceedings complained of were set in motion by the defendant ”,As regards the second essential, it is not necessary that the plaintiff shallhave actually undergone a trial and been acquitted. It will be sufficientif the Public Prosecutor has declined to proceed, and as regards the thirdand fourth essentials, it is absolutely indispensable for the purposes ofthis action that the prosecution shall have been instituted both maliciouslyand without reasonable and probable cause.
I would, therefore, hold that the contention for the appellant that theonus of proving the falsity in fact of the charge apart from the terminationof the proceedings in his favour lay on the plaintiff must fail. It may bepossible for a defendant in such an action to prove that the charge wastrue in fact, and it may be that evidence to this effect will enable him toshow that the charge was made on reasonable and probable cause.
It was also contended by Counsel that plaintiff had failed to provemalice on the part of the defendant, but the learned District Judge held,and in my opinion correctly held, that there was implied malice, and thatfrom the evidence in this case, express malice could also be inferred. Iwould accordingly dismiss the appeal with costs.
Moseley J.—I agree.
RAMEN CHETTIAR v. PUCHIAPPUHAMY